Accommodative Secularism

Earlier this year, in Prafull Goradia v. Union of India [decided January 28, 2011], the Supreme Court of India considered the constitutional validity of the Haj Committee Act, 2002, and in particular, the air fare subsidy granted by the Indian government to Haj pilgrims. The petitioner contended that his fundamental right under Article 27 of the constitution had been violated. Article 27 ensures that “no person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination”. The argument was that the subsidy was being funded by taxpayer money. Broadly, constitutional “secularism” stands for two propositions, (1) free exercise, and (2) non-establishment. Article 27 arguably furthers the latter proposition, i.e., that the state should not be seen as establishing or endorsing any religion, by forcing people to pay religious taxes.

While dismissing the petition, the court [Justices M. Katju and G.S. Misra] found that Article 27 operates even within the context of general taxing statutes, but it only militates against the use of a “substantial part” of the tax paid, toward the promotion or maintenance of any particular religion or religious denomination. A small proportion of taxes paid under a general taxing statute can accordingly be used by the state to fund religious groups. In the court’s calculations, 25% is a substantial amount:

“In our opinion Article 27 would be violated if a substantial part of the entire income tax collected in India, or a substantial part of the entire central excise or the customs duties or sales tax, or a substantial part of any other tax collected in India, were to be utilized for promotion or maintenance of any particular religion or religious denomination. In other words, suppose 25 per cent of the entire income tax collected in India was utilized for promoting or maintaining any particular religion or religious denomination, that, in our opinion, would be violative of Article 27 of the Constitution...A balanced view has to be taken here, and we cannot say that even if one paisa of Government money is spent for a particular religion there will be violation of Article 27.” (emphasis supplied)

Referencing the counter affidavit filed by the central government, the court cited similar instances where the state bears religious expenses, which are constitutional because the expenses are “small…in proportion to the entire tax collected”: expenses incurred for the Kumbh mela, for pilgrimage to Mansarovar, and for providing facilities to pilgrims visiting temples and gurudwaras in Pakistan.

The court’s holding arguably supports the proposition that the idea of secularism under India’s constitution is accommodative. For this reason, cabinet ministers can take their oaths of office in the name of God, and perhaps for this reason that “benevolent” foundation ceremonies can be conducted at High Court buildings.

Potpourri

1.Shekhar Hattangadi's comment in Afternoon Despatch and Courier on Supreme Court's recent 'What the hell is going on in this country' remark.

2.My critical comment on the Gujarat High Court's controversial judgment holding bhoomipuja a secular activity, and on the Supreme Court's recent observation lamenting Government's failure to reform personal laws of religions other than Hinduism. This link takes you to Tahir Mahmood's response to the SC's remark.

3. Was the National Commission for Minority Educational Institutions correct in declaring Jamia a minority institution? Read this article in recent Frontline.

4. The list of contents with links of the recent issue of Frontline is available here.

Gujarat High Court's stimulating interpretation of the demands of Indian secularism

On Feb 10, 2011, a division bench of the Gujarat High Court dismissed, with "exemplary costs" of Rs 20,000, a PIL filed by a Dalit activist challenging the performance of Hindu religious functions during a 'foundation laying/bhumi pujan ceremony' on the grounds of the High Court. The full text of the judgment in the case of Rajesh Solanki v. Union of India is available here (hat tip: Law-in-Perspective), and makes for very interesting reading. The judgment is strangely silent on the material facts that led to the petition: for those facts, one has to turn to media reports (such as those available here and here).

As set out in the judgment, the main ground of challenge was as follows:

“ 5. Much emphasis was given by the learned counsel for the petitioner on the aspects of the secular character of our Constitution and the word “Secular” incorporated in the preamble of the Constitution read with the relevant Articles of the Constitution provided for right to freedom of religion were pressed in service. It was submitted that as per the constitutional debates which had taken place before our Constitution came into force, there were various discussions on the said aspect, some of which are referred to in the petition and some were submitted at the time of hearing to contend that the State cannot have any religion. Any action on the part of the State to identify itself with any particular religion could be said to be non-secular activity on the part of the State. It was contended that offering prayers with the help of Pandits who spoke Sanskrit slokas at the Bhoomi Pujan could be termed as identification by the Constitutional dignitaries or the High Court with Hindu religion and such activity would hurt the religions feeling of the citizens who professes other religion and therefore, such action can be said as non-secular and deserves to be declared as unconstitutional. It was submitted that the petitioner has no enmity with any Constitutional dignitaries who offered prayers at the ceremony including the other Honourable Judges who attended and participated at the function, but such function can be said as resulting into creating adverse feeling amongst the other persons who do not believe in Hindu religion. It was also submitted that the High Court being the highest judiciary in the State should guard the constitutional rights given to all citizens and should maintain the secular character of the State. The performance of such ceremony as per Hindu religion would shake the confidence of the people who do not believe in Hindu religion and therefore, the action deserves to be declared as unconstitutional as prayed in the petition. It was also submitted that secularism being one of the basic character of the Constitution, even Parliament cannot amend the Constitution so as to alter the basic structure of the Constitution. Therefore, such would equally apply to the High Court which is the highest judiciary in the State and the constitutional body to guard the rights of the citizen in the State."

The response of the division bench, comprising Justices Jayant Patel and J.C. Upadhyaya, to this line of argument was as follows:

"19. The apprehension voiced of the alleged hurt of any religions feeling or that the impartiality of the highest judiciary of the State would be at stake on account of the foundation laying ceremony performed by offering prayers and the sanskrit slokas spoken at that ceremony, can be termed as a pervert view or ingenuine doubts self created in the mind of the petitioner or the persons whose cause is sought to be exposed by the petitioner in the present petition to a noble intention of praying the earth for the successful construction of a building to be used by all persons directly or indirectly connected therewith, irrespective of their caste, community, or religion, etc. Offering of prayer by any person for betterment of everybody cannot be termed as any activity or any action resulting into non-secular activity. Further, as observed earlier, such action of offering prayer to the earth at the time of foundation laying ceremony cannot be termed as an activity by the High Court which may result into flourishing any particular religion as sought to be canvassed. The real object and purpose is for successful construction of the building and not for flourishment of any religion. If for any noble cause, prayers are offered by any person, such would not result into an action for flourishment of any particular religion, but could be termed as for betterment of all persons who are directly or indirectly to be benefited by the successful construction of the building. If one has to offer prayer for successful construction of the building, naturally, he or she would offer prayer as per his own understanding of prayer. The language used for offering prayer or mode adopted for offering prayer with the help of a group speaking a particular language cannot be termed as siding with a person or a group of person adopting a particular mode for offering prayers. As such, offering of prayer at the incident of Foundation Laying Ceremony for the successful construction of the building to be used by the persons irrespective of their caste, community or religion, etc., could be termed as a part of secular activity and it cannot be termed or branded as choosing a particular religion since the prayers offered for such a noble cause cannot be termed as essential and integral part of a particular religion, but can rather be termed as for the benefit of all who are to make use of the new building directly or indirectly in future. Hence, it cannot be said that the High Court or the Chief Justice of the High Court or the Governor while offering prayer for successful completion of the building has taken any action which can be termed as non-secular and consequently, unconstitutional.”

The ToI report on the case carries the headline: “Secularism is not anti-God”. Students of the Indian judiciary’s body of precedents on religion and the law know that this sentiment is certainly in line with that body of law. However, the question is not whether one has to be “anti-God” to be secular, but whether one religion in particular can be accorded a higher status, thereby violating the principle that all religions in India be treated equally. The High Court’s judgment spectacularly ducks this more important and salient question. It would have been quite a different scenario if the Gujarat High Court had invited religious figures from the major Indian religions to the foundation ceremony to offer common prayers. (This is not to say that that scenario is not without problems, but to emphasise that only one religion was represented).

There is also a disturbing whiff of vindictiveness in the costs awarded to the PIL petitioner, who was, in any view of the matter, raising a basic and significant question. One hopes that he will persist with the case, and take it on appeal to the Supreme Court, which in turn should take the opportunity to clarify the state of the law on this important question which arises in Indian public life with frequency and consistency.

Idols in Law

The current issue of the Economic and Political Weekly carries a special section of articles on the Ayodhya judgment. Anupam Gupta, one of the counsel who appeared before the Lieberhan Commission, does a close reading of the suits to suggest that the decision stands on very flimsy legal grounds. Gautam Patel reviews the evidence to suggest that the judgment is politically expedient at the cost of judicial integrity. Historian Kumkum Roy makes a thoughtful argument about how questions of faith can be addressed through a legal discourse, and more importantly, how a person of faith (in her case a practising Hindu) should respond to the court's treatment of Hinduism. To this end, she draws on a survey she carried out amongst women about what Ram means to them. P.A Sebastian makes a fairly rehearsed argument that this is the most recent in a series of judgements by Indian courts undermining secularism. Historians Supriya Verma and Jaya Menon who were observers during the ASI excavation point out the flaws in the report noting many irregularities and outdated methods they observed. Verma and Menon focus on the perception of archeology as an exact science and the role played by the ASI in fostering the impression. They attribute the reluctance of archeologists to critique the ASI, to its complete monopoly over heritage management. "Any archaeologist in India or from outside who wants to explore or excavate sites has to obtain a licence from the ASI. So no field archaeologist is willing to speak out against it or its outdated methods." Yet, instead of being the expert of experts that the Allahabad High Court declared it to be they note "academically, the work that archaeologists of the ASI have produced has little standing within the social sciences in India and abroad."

Summary of the Babri Masjid -Ram Janm Bhoomi Decision

My summary of all the opinions in the Babri Masjid decision can be found here. The judgment poses a fascinating array of questions. There has already been strident criticism as well as cautious praise for the decision, much of which has been noted on this blog in the past few days. This note attempts to give a broad overview of the facts of the case as presented to the Court, the issues raised by the parties and the Court's decision thereon. At this stage, the note does not contain any analysis or critique; merely a summary of the voluminous decision.

Please note: I prepared this summary as part of my Research Assistantship with Prof. Ratna Kapur, who is a Visiting Professor at Yale Law School this Fall. I have her permission to post the note online.

Bangladesh Supreme Court bans religious parties

The full text of the historic judgment delivered by the Bangladesh Supreme Court banning religious parties and upholding secularism in that country is here.

From the latest Frontline....

*My post on the dyslexic student failing to get interim relief from the Supreme Court invited quite a few insightful comments. My thanks to all the commentators, though my article does not reflect all the comments.

*My review of Rajeev Bhargava's The Promise of India's secular democracy and Ronojoy Sen's Article of Faith (both published by OUP).